Under PERM, as under pre-PERM law, foreign national employees being sponsored for a labor certification may not count experience gained on the job with the sponsoring U.S. employer to meet the job requirements. PERM expands the realm of this prohibition by also applying it to contractors who worked for the sponsoring U.S. employer. The U.S. Department of Labor's theory for this restriction is that if the U.S. employer was willing to train the foreign national employee, the U.S. employer should train a U.S. worker.

For example, if the Skill Set that the U.S. employer describes in its labor certification case requires a Bachelor's Degree in computer science and two years of experience as a software engineer performing X, Y, and Z duties, this is the Skill Set that the U.S. employer will use when determining if U.S. workers who apply meet the employer's requirements.

If the foreign national employee had only one year of experience with a prior U.S. employer that it can prove and gained another 14 months of experience with the sponsoring U.S. employer, then normally the foreign national cannot count experience gained on the job with the sponsoring employer. Either the U.S. employer has overstated its requirements (since it hired the foreign national with only one year of prior experience) and must reduce its experience requirement, or the employer may not proceed with the case using this Skill Set because the foreign national being sponsored will not qualify.

PERM redefines a pre-PERM exception that existed when the foreign national employee gained the experience in a materially different job. Under PERM, the employer may show that the foreign national was hired to fill a different job (than the one for which the employer is seeking a labor certification approval).¹ The PERM rules specifically say that:

The employer must prove the job in which the alien gained the experience is not substantially comparable to the job for which certification is being sought. A 'substantially comparable' job or position means a job or position requiring performance of the same job duties more than 50% of the time. This requirement can be documented by furnishing position descriptions, the percentage of time spent on the various duties, organization charts, and payroll records.

Employers whose PERM cases rely on a Job A/Job B scenario should include a written justification in their PERM audit file and prepare the kinds of supporting evidence outlined above. Given the way PERM is designed, a Job A/Job B scenario increases the likelihood that DOL will issue an audit letter requesting the employer's Job A/Job B justification and supporting evidence.

As an alternative to proving that a Job A/Job B situation exists, the PERM rules allow an employer to try to show that it is infeasible for the employer to train a U.S. worker. However, the standard associated with infeasibility to train is very high, and few cases succeed with this approach.

¹ Under PERM not only are qualifications gained as an employee of the employer generally not usable, but qualifications that the foreign national gained while contracting with the employer are similarly not usable.